For fifteen years, the New York Times had a Public Editor, whose job was visibly uphold journalistic ethics. The Public Editor would publicly discuss errors, biases, or gaps in the paper’s coverage. (Some other news organizations continue to have a public editor position, though I think it’s not widespread.)

I’d like to propose something narrower: a Numeracy Editor. The Numeracy Editor’s job would be to help reporters and columnists use numerical and statistical reasoning well.

I’ve been pondering this idea for a while, and finally decided to write about it after reading Vatsal G. Thakkar’s excellent NYT Op-Ed Bring Back the Stick Shift a couple of weeks ago. It’s a good piece, but at one point it veers into unexpected non sequitur in an attempt to use statistics to support its argument:

Backup cameras, mandatory on all new cars as of last year, are intended to prevent accidents. Between 2008 and 2011, the percentage of new cars sold with backup cameras doubled, but the backup fatality rate declined by less than a third while backup injuries dropped only 8 percent.

The more you read that, the less it means. For a three-year period, the percentage of new cars sold with backup cameras doubled from whatever it was before — without knowing what it was before, this doesn’t tell us anything: the result of doubling a very miniscule percentage would still be a miniscule percentage, for example. Meanwhile, during that same three-year period, fatalities due to backups declined by some amount (less than a third) from whatever the rate was before — again, we don’t know. So does that decline represent a greater decline in backup fatalities than should be expected from whatever percentage of cars on the road newly have backup cameras? Or a smaller decline? There is no way to say. Also, we don’t know what percentage of cars driving on the road are new cars, which is highly relevant here.

If the author was trying say to that fatalities should have declined more, this paragraph does not support that case, but it doesn’t support any other case either. It throws some statistics into the air, as if to see how the wind catches them, but they don’t connect to each other and they have no bearing on the question at hand. As my friend Tom put it, it’s just a “number casserole”.

I certainly don’t mean to pick on on Thakkar — again, I liked the piece — or on the New York Times. This sort of thing happens in many publications; you can see it all the time, in the regular reporting just as much as in opinion editorials.

But given that this was the New York Times Op-Ed page — a forum that presumably takes quality control and editorial standards seriously — it’s worth asking: how did such a problematic paragraph make it through the filters? I think the answer is that there is no editor whose reputation are self-respect are on the line when numerical clunkers slip through. A few grammatical or spelling errors and someone’s job is in danger, but even glaring errors of statistical reasoning are currently costless.

I get that journalists and their editors tend to have backgrounds in language, political science, history, and other fields that don’t emphasize math. And that’s fine: this isn’t an “everyone should learn more math” argument. There are only a finite number of days in anyone’s life, there isn’t time to learn everything, and people make the choices they make for reasons. That’s exactly why a Numeracy Editor is needed: it would be her job to own this problem, and along the way help journalists learn the math they need. The writers would start to be more careful just knowing that someone is watching. A Numeracy Editor would have caught the problem in that Op-Ed right away, and once spotted, it’s easy to explain; the conversation with the author can take place before publication, as with any other kind of editing. Many errors of numerical or statistical reasoning are easy to understand once they’re pointed out (although there are also subtler cases, such as Simpson’s Paradox, that occur in real-life, policy-relevant situations and need to be watched for).

Unlike Public Editor, Numeracy Editor need not be a public-facing role. The main point is to help writers and other editors use math appropriately and to prevent mistakes. If the editor also wants to conduct a public discussion about using numbers and graphs in journalism, that would be a great public service too, but it’s a bonus. The role could do a lot of good purely behind the scenes.

Numeracy Editor should be an easier position to hire for than the broader role of Public Editor has been, because it doesn’t require nearly as much journalistic experience (the Numeracy Editor isn’t making hard judgement calls about how much anonymous sourcing is acceptable in a story, for example) and because the advice it provides would be less controversial.

Anyway, I don’t run a newspaper; all I have is this blog. I’d love to hear from anyone who works in or near journalism what they think of this idea.

I guess I’ll just write this as though I have reason to be believe that the people who write headlines for the New York Times read my blog.

For the record: I’m a subscriber, and I think the Times does some terrific reporting and investigative journalism — when they’re at their best, there’s no one better. That makes the unforced errors all the more disappointing.

Look at the top of today’s edition’s front page:

First note the caption beneath the big color photo on the left, which says:

A migrant caravan headed north Monday from Tapachula, Mexico, where members had stopped after crossing in from Guatemala.

Now all the way over on the right, note the bold headline at the top of the rightmost column:

Trump Escalates Use of Migrants As Election Ploy

Issuing Dark Warnings

Stoking Voters’ Anxiety With Baseless Tale of Ominous Caravan

If you take the headline at face value, and then look over at the photo, you would naturally come to the conclusion that the New York Times is contradicting itself on its own front page.

It turns out that the article under the headline is indeed about a baseless tale — just not one about the existence of the caravan itself, even though that’s what the headline would imply to any casual reader:

President Trump on Monday sharply intensified a Republican campaign to frame the midterm elections as a battle over immigration and race, issuing a dark and factually baseless warning that “unknown Middle Easterners” were marching toward the American border with Mexico.

[emphasis mine]

In twenty words of headline, there wasn’t some way to fit something specific about the false claim in?

How about this:

Trump Falsely Implies Terrorism Threat From Caravan

“Unknown Middle Easterners”

Stoking Voters’ Anxiety With Baseless Claim About Migrant Caravan

There, did it in 19 words, one fewer than the number they used for a misleading and less informative headline.

Yes, by the way, you know and I know and the New York Times knows that “Middle Easterner” doesn’t mean “terrorist”. But it’s perfectly clear what Trump is doing here and the NYT shouldn’t shy away from describing it accurately… in the headline.

(Entirely separately from the above, there’s the question of why the New York Times is running a giant color photograph of the migrants above the fold on its front page, for the second time in the past few days. These caravans have been going on since 2010; they’re larger and more organized the last couple of years, but they’re not new. As an independent news outlet, why let a politican’s talking points drive cover art choices in the first place?)

A particularly insidious problem with online social media platforms is biased and overly-restrictive ban patterns. When enough people report someone as violating the site’s Terms Of Service, the site will usually accept the reports at face value, because there simply isn’t time to evaluate all of the source materials and apply sophisticated yet consistent judgement.

No matter how large the company, even if it’s Facebook, there will simply never be enough staff to evaluate ban requests well. The whole way these companies are profitable is by maintaining low staff-to-user ratios. If policing user-contributed content requires essentially arbitrary increases in staff size, that’s a losing proposition, and the companies understandably aren’t going to go there.

One possible solution is for the companies to make better use of the resource that does increase in proportion to user base — namely, users!

When user B reports user Q as violating the site’s ToS, what if the site’s next step were to randomly select one or more other users (who have also seen the same material user B saw) to sanity-check the request? User B doesn’t get to choose who they are, and user B would be anonymous to them — the others wouldn’t know who made the ban request, only what the basis for the request is, that is, what user B claimed about user Q. The site would also put their actual Terms of Service conveniently in front of the checkers, to make the process as easy as possible.

Now, some percentage of the checkers would ignore the request and just not bother. That’s okay, though: if that percentage is high, that tells you something right there. If user Q is really violating the site’s ToS in some offensive way, there ought to be at least a few other people besides user B who think so, and some of them would respond when asked and support B’s claim. The converse case, in which user Q is perhaps controversial but is not violating the ToS, does not necessarily need to be symmetrically addressed here because the default is not to ban: freedom of speech implies a bias toward permitting speech when the case for suppressing it is not convincing. However, in practice, if Q is controversial in that way then some of the checkers would be motivated to respond because they realize the situation and want to preserve Q’s ability to speak.

The system scales very naturally. If there aren’t enough other people who have read Q’s post available to confirm or reject the ban, then it is also not very urgent to evaluate the ban in the first place — not many people are seeing the material anyway. ToS violations matter most when they are being widely circulated, and that’s exactly when there will be lots of users available to confirm them.

If user B issues too many ban requests that are not supported by a majority of randomly-selected peers, then the site could gradually downgrade the priority of user B’s ban requests generally. In other words, a site can use crowd-sourced checking both to evaluate a specific ban request and to generally sort people who request bans in terms of their reliability. The best scores would belong to those who are conservative about reporting and who only do so when (say) they see an actual threat of violence or some other unambiguous violation of the ToS. The worst scores would belong to those who issue ban requests against any speech they don’t like. Users don’t necessarily need to be told what their score is; only the site needs to know that.

(Of course, this whole mechanism depends on surveillance — on centralized tracking of who reads what. But let’s face it, that ship sailed long ago. While personally I’m not on Facebook, for that reason among many, lots of other people are. If they’re going to be surveilled, they should at least get some of the benefits!)

Perhaps users who consistently issue illegitimate ban requests should eventually be blocked from issuing further ban requests at all. This does not censor them nor interfere with their access to the site. They can still read and post all they want. The site is just informing them that the site doesn’t trust their judgement anymore when it comes to ban requests.

The main thing is (as I’ve written elsewhere) that right now there’s no cost for issuing unjustified ban requests. Users can do it as often as they want. For anyone seeking to no-platform someone else, it’s all upside and no downside. What is needed is to introduce some downside risk for attempts to silence.

Other ideas:

A site should look more carefully at others’ ban requests against material that someone else has already made a rejected ban request about, or that someone who has a poor ban-reliability score has requested a ban on, because there would be a higher likelihood that those other requests are also unjustified.

A lifetime (or per-year) limit on how many ban requests someone can issue.

Make ban requests publicly visible by default, with opt-out anonymity (that is, opt-in to be identified) for the requester.

Do you have other (hopefully better) ideas? I’d love to hear them in the comments.

If you think over-eager banning isn’t a real problem yet, remember that we have incomplete information as to how bad the problem actually is (though there is someevidence out there). By definition, you mostly don’t know what material you’ve been prevented from seeing.

(Update: A few months after I wrote this post, this happened, which I think proves my point. With “allies” like these, who needs oppressors?)

More and more of the political left — which is where I sit, at least by American standards — seems to be abandoning the idea of freedom of speech as an inherent good, let alone as the essential liberty on which all other liberties depend.

Recently, someone I know and respect called repeatedly for Donald Trump to be banned from Twitter. He’s notalone. A lot of people want this, and they don’t want just Trump banned, they want many speakers banned from many popular platforms.

This is a worrying trend. The left may be about to finally gain some measure of political power in the United States, depending on the results of the November election. Yet right at that moment we are limiting our ability to have necessary debates and to even hear what people say. I’ll focus on one particular example in this post, but the problem is a general one. This narrowing would be bad under any circumstances, but it becomes worse when attached to power.

I’m not talking here about state censorship. A few people call for that too, but most people still understand why the state needs to be especially constrained in its ability to interfere with speech. I’m talking about no-platforming and campaigns for blanket shunning: that is, urging private-sector platforms to ban certain speakers, and shaming other people and organizations into ostracizing those speakers as individuals under all circumstances, even circumstances that are unrelated to the allegedly objectionable speech.

Are there narrow, consistent criteria we could use to decide when it’s appropriate to advocate non-state suppression of speech?

I think there are, and I think we’d be better off if we stuck to those criteria instead of the increasingly broad and subjective criteria many are using right now, most of which are based on empathy for those who are hurt by harmful speech. Certainly, speech can be harmful: the argument for freedom of speech has never been that there is no such thing as harmful speech, but rather that suppressing speech almost always leads to worse harm down the road. There are two reasons why “someone felt deeply hurt” is not a good test: one, it treats the speech and the speaker inconsistently by looking to others’ reactions as a guide (reactions which will vary from listener to listener), and two, sometimes useful speech may also be hurtful to some people — these two things are not contradictory, much as we might wish otherwise.

We need a better test.

Last year I read a good post by Valerie Aurora entitled The Intolerable Speech Rule: the Paradox of Tolerance for tech companies. The post links to a presentation she gives that’s worth watching. It’s thoughtful, aware of the tradeoffs involved in any kind of permitted-speech policy, and careful to distinguish between private actors (such as social media platforms) and the state.

Here is Valerie Aurora’s formula, phrased as a guideline for online platforms:

If the content or the client is:

Advocating for the removal of human rights

From people based on an aspect of their identity

In the context of systemic oppression primarily harming that group

In a way that overall increases the danger to that group

Then don’t allow them to use your products.

It’s a very specific, circumscribed rule. If I ran an online service, I’d try to follow it — but as conservatively as possible, because:

What about someone who tries, sincerely and non-threateningly, to discuss what is and is not a human right in the first place?

A friend of mine, Nina Paley, has been repeatedly no-platformed for doing exactly this. Nina is blunt and direct, because she has strong feelings on the issue she’s speaking about. But she threatens no one, and never tries to silence or dehumanize. She’s happy to engage with opposing views, and argues her own in good faith.

I’ll state Nina’s view only briefly here — if you want to know more about it, you’re better off getting it fromher, and most of what I’m saying here is not about the substance of her view. Put simply, Nina doesn’t accept the argument that transgender women are women. Nina would like women’s-only spaces to be for women who were born women (or, as Nina resolutely calls them, “women”). Some people call this “Trans-Exclusionary Radical Feminism” and thus refer to Nina as a “TERF”. Nina prefers the term “gender-critical radical feminist”. At the very least, if you use the term “TERF”, be clear, as Nina always is, that the exclusion is from the set of human females, not from humanity itself. Half of humanity is already excluded from being female (so it’s clearly not dehumanizing). Nina’s argument is that if that half is making masculinity a toxic place to be, then the solution is to fix masculinity so people stop fleeing it.

I won’t go into detail about the substance of her argument; you should get it from Nina, not me. I’m sure you can come up with counter-arguments, too. I have done so with Nina, starting with the obvious: “Many trans people consistently report that they always felt that their body was the wrong sex — and they start expressing this when they’re young children, so it’s not just a retconned memory. There’s something real going on here.” Nina has interesting and probing responses to this, and you can ask her about them if you want; I was glad I did, because it led to an in-depth conversation.

But this post is not about the substance of Nina’s argument. It’s about freedom of speech: How can someone even have this conversation with Nina, or observe her having it with others, if platforms deny her the ability to speak?

For expressing this view, Nina was briefly banned by Facebook. Apparently, a bunch of people who disagree with her got together and reported her to Facebook as though she were spamming or in some way violating the site’s terms of service. That’s a straight-up dishonest tactic. That’s no-platforming.

Nina is a frequent and well-known speaker about art and copyright restrictions, but now is sometimes disinvited from speaking gigs because of her gender-critical radical feminism, even when that’s not the topic of the speech. She’s had a showing of her film canceled (her films are not about gender-critical radical feminism either). When a friend of hers tried to post screenshots of a Facebook thread showing the venue’s statement about the cancellation, plus the usual tons of debate in followup comments, those screenshots mysteriously vanished from imgur.com. So the person reposted the screenshots, and again they disappeared — again with no explanation or notice.

What the heck? Is someone working at imgur a secret censor?

I wanted to know more, so I asked Nina’s friend exactly what had happened and got this reply (you can skip the blow-by-blow if you want, but it’s worth reading it to feel what the experience of being no-platformed is like):

Timeline is this:

(1) Argument happens on the Arcadia cafe page. People are calling
for no-platforming, etc. It gets to hundreds of comments.

(2) Juicy drama of this sort often gets removed, so around 8:15 PM,
I decided to just take a bunch of screenshots. I have these on
my computer.

(3) Sure enough, later that evening (10 PM?) Arcadia removes the
event from their page, and with it all the comments.

(4) Nina asks me if I have screenshots, I tell her I do, and that
while they’re completely unedited (so non-anonymized or pasted
together) I can put it somewhere, I suggest imgur in an album,
which will be viewable if you know the exact URL but not
browsable from my name or anything (like all my other images,
same way).

(5) The next morning (day after the event) I put the images up in
the first album “Arcadia No-platforming.” Imgur interface is not
so friendly, to keep the images in order I have to upload them
one at a time. There are 64 images.

(6) The URL got shared on Facebook, I see some people viewed the
album. Next morning, I awake to find… all the images are GONE.
Completely gone from my account (not just taken out of the
album). The album is left, but it’s an empty shell, nothing in
it. I have NO notifications, no email, no nothing, just the
images are gone. I have the album still open from the previous
night with the image showing (cached in my browser) but if I try
to open, yep, it’s the usual standard “this image has been
removed or is no longer available” thing.

So I’m just… CURIOUS.

(7) I upload the images again (all 64 of them, again one at a time).
I put in a new album “Arcadia No-platforming Is Back.” I decided
that hey, let’s save this link to the completed new album to the
Internet Wayback Machine. I do this, and confirm that the images
are backed up over there (so they’re on the public internet now
in a place that isn’t imgur).

(8) Nina also takes the images from the new album, and puts on her
blog. So they’re available in a second place, that isn’t imgur.

(9) Overnight that night, the images are removed AGAIN. Once again,
the album is left as an empty shell, and all the images are
completely gone from my account. None of my other images (some
of which are waaaaayyyyyyyyyy more “offensive” than these
screenshots I might add, and which have been linked,
individually, on twitter by me) are disturbed at all. Just the
Arcadia facebook screenshots.

So yeah. CURIOUS.

(10) I get mad, and make the single image that just has the “stop
trying to censor this, the images are [elsewhere]” redirect
text on it. I upload that into both albums. Both albums have
been steadily getting views.

(11) That next night, someone removes the redirect image! Just wtf.
Again, it’s gone from my account, no notifications of any sort
to me AT ALL.

(12) I upload the single redirect image again, again put it in both
albums.

(13) Since yesterday, I check the albums periodically but whoever it
is has given up, the redirect image has stayed in there. Both
albums are getting views, still.

That’s about it. It’s just curious to me, because… I’ve never had
any images removed from my account before, and I have plenty of stuff
that anyone who can’t deal with “penis is male” would be far more
offended by.

I suspect that someone involved in the facebook comments thread got
upset and complained to imgur that their “personal data” was being
shared, or something.

Thing is, it was a public facebook page, public comments, open to the
entire world. Also, if I was officially violating a TOS, I’d expect
to get some sort of notification about it or a slap on the wrist or
some warning or something.

But yes, I suspect someone involved in the whole thing didn’t want
their comments put on display in a less than favorable light
(somewhere else that was linking to my album, since I didn’t post my
album anywhere myself) and sent a complaint, or something. But…
dunno.

Either way, both albums keep getting views, to that single image.
Just… weeeeird.

That’s what no-platforming looks like. At its best, which is still pretty bad, the platform will at least admit to the censorship and describe how the decision was made. At its worst, as appears to be the case with imgur.com, it looks the way censorship regimes usually look: information disappears, and there’s no explanation nor even acknowledgement that it happened. Everyone please move along; nothing to see here.

Ostracism is not an answer either.

I mentioned that Nina has had speaking gigs and showings of her films canceled. Perhaps you’re thinking “Hey, that’s different. That’s not no-platforming. That’s just someone not wanting to be associated with Nina’s views. People have the right to disassociate themselves — in fact, isn’t that what ‘freedom of association’ is all about?”

Sure, in some literal sense, that’s true. But it’s best to use this “freedom to ostracize” sparingly. Most disagreements do not need to rise to the level of not being able to be seen with someone at all. There is no need for people to assume that when you engage someone in an unrelated discussion or presentation, you also endorse everything else that person believes.

Worse, there is a dangerous feedback loop here. The less often venues present people whose views diverge from the venue’s, the more we start to think that when a venue does present someone the venue tacitly endorses everything that person thinks. The eventual result of this process is monoculture and an arms race of virtue-signaling, which is exactly what’s happening in certain quarters of the political left.

Here’s the working principle I would use (and I’d appreciate constructive feedback on it in the comments section):

If you already thought a person is worth presenting — or engaging in discussion with, or showing the artwork of, etc — then do so, unless that person has some unrelated public stance that clearly and unambiguously advocates violence or violates the “Intolerable Speech Rule” (that’s the Valerie Aurora test given earlier).

Nina Paley is justly famous for her articulate and persuasive arguments against copyright restrictions. She’s also justly famous as a filmmaker. If you’re looking for a speaker on the topic of copyright, or if you’re a venue that shows art films, you don’t need any special excuse to choose Nina Paley — she’s already on the short list.

So, given that, don’t not choose her just because she has other views that you might disagree with. As long as those views don’t qualify as “intolerable speech”, which they certainly do not, you’re not responsible for them. You’re not inviting her to be your CEO or the chair of your board of directors or something — those would create a meaningful, leadership-related association between your organization and Nina, and people could reasonably assume an implicit endorsement of, or at least lack of objection to, her views. In the absence of such a connection people shouldn’t make those assumptions, and you are free to make that clear.

To shun Nina’s contributions and works out of fear — that is, fear of being tainted by association with something Nina thinks, of being punished by the mob because you failed to shun Nina — is to make it that much harder for others to openly tolerate dissenting views. It’s passing the buck.

It also causes people to think Nina’s views are something other than what they are. All over the Internet you can find people calling her “transphobic”. This is pure libel: she is not, never has been, and such an attitude would be foreign to her nature. Nothing she has actually written or said would support the conclusion, either. But people believe it anyway, because they’ve seen other people saying it about Nina, and because they’ve seen venues that, besieged by the lie, believe it too and cancel appearances based on it.

When a venue cancels an appearance by Nina in response to false cries of “transphobia” or “hate speech” (more on that later), or a platform bans her for the same reason, it becomes party to the libel. It’s now part of the problem. Other people see the action and assume there must be some truth to the accusation — after all, why else would the post or the event have been canceled?

Please don’t contribute to this kind of mess, not with Nina or anyone else. Exercising “freedom of association” is not a free pass to slowly corrode someone’s reputation through inaction and invitations canceled or foregone. If you admire someone’s work, support her in that work.

Privilege, platforms, and using misrepresentation to silence.

One response to my concerns might be “Look, this is all easy for you to say, from your position of privilege as a white, straight, cis-gendered male citizen of the United States.”

I’m the first to admit my comfortable position. I’ve got it easy, and wish I could share that privilege with everyone. If I were transgender, if I didn’t have my identity constantly being reinforced and encouraged by the culture around me, I can see that I might be genuinely hurt by Nina’s position — I’m not actually sure I would be, and in fact there are transgender people who aren’t hurt & who speak out in support of Nina’s position, but I’ll certainly grant the possibility that I might be hurt.

However, the possibility of hurt feelings is not a reason to ban speech or ostracize the speaker. There is inevitably going to be disagreement about things that people take personally — for example, the question of whether others regarding you and treating you as the gender of your choice is a human right or not. The disagreements that matter are, by definition, the ones people care about. If we prohibit or shun speech that touches anything people are deeply invested in, we’ll all be left discussing the latest trends in shopping-mall interior decoration.

More importantly, once speech starts being restricted, it’s not the privileged who pay the price. As my friend Jeff Ubois put it: “It may not be possible think clearly about inclusion or freedom of association without freedom of expression. But freedom of expression is what some advocates for vulnerable people want to limit.”

Look again at Valerie Aurora’s formula (by the way, I don’t know whether Valerie herself would agree with any of this — these are my interpretations of her formula, not necessarily her interpretations):

If the content or the client is:

Advocating for the removal of human rights

From people based on an aspect of their identity

In the context of systemic oppression primarily harming that group

In a way that overall increases the danger to that group

Then don’t allow them to use your products.

Nina does none of the above, unless you think that declining to treat another person in the way that person wants to be treated is inherently a human rights violation. I do not. One might choose to treat certain people in the ways that they prefer, but someone else who does not make the same choice is not thereby guilty of violence or dehumanization. I can think of myself however I wish to think of myself, but I can’t dictate how others think of me, even if I am hurt when they don’t see me as I see myself.

Separate from the issue of ownership of identity, there’s also a fundamental issue of honesty here:

When people band together to get someone no-platformed, there’s usually fraud involved. The complainants have to falsely claim a violation of the platform’s terms of service, knowing that the site’s overworked staff won’t actually have time to look deeply into the matter and make a reasoned decision. When people demand that a venue cancel an event on the grounds that someone who is clearly not transphobic is transphobic, that’s a misrepresentation.

The no-platformers are not seeking honest debate; they’re seeking to remove a voice. It’s silencing.

Social media platforms, at least, could help solve this problem by improving their ban systems. Right now there is no cost to someone who fraudulently requests that another person be banned, or who even makes repeated ban requests against many targets. For the no-platformers, it’s all upside and no downside. Until the platforms introduce some downside risk to those who would silence others, some penalty for bad-faith ban requests, the censorship will continue. Yes, this would require the platforms to make some judgement calls, but after all those companies are already exercising judgement when they ban — they’re just doing it poorly.

The dangers of speech are not imaginary, of course. As much as I want to be a free-speech absolutist, even I can agree that some restrictions are necessary. Actual threats of violence, for example, justify restriction even by the state.

But private-sector venues and online platforms make their own terms, and they should try to live up to the free-speech principles they almost always claim to support. That includes measures to prevent coordinated no-platforming attacks from users bent on substituting their own speech code for the site’s terms of service. If it’s not a threat and it’s not seeking to endanger anyone through dehumanization, then let it stand. Real-world venues should err on the side of liberality and diversity. (And no, that doesn’t mean inviting Steve Bannon to headline your festival, but the reason not to invite him is because he’s a poor exponent of the ideas he claims to champion. A brief proximity to power is no reason to put a sloppy thinker on your short list in the first place.)

That friend who posted the screenshots also wrote: “… ‘hate speech’ codes only ever serve to protect the powerful”. I think that’s correct in the long run. Speech codes may give temporary comfort to some, but in the end systems of censorship will inevitably be turned against the weak by the strong.

My friend Smiljana, when we were discussing Nina’s no-platforming, said:

Trump praises this bizarre offer from Putin in which U.S. gets to question the 12 Russians the U.S. DoJ accuses of engaging in election subterfuge, in exchange for Russia questioning William Browder and former ambassador Michael McFaul. News outlets go nuts about the proposal, bringing on talking heads to discuss what a crazy idea this is. The anchors and talking heads use inflammatory language about “handing over” Browder or McFaul, or letting Russia “interrogate” the subjects, etc.

But none of these commentators or news anchors (so far as I’ve seen) mentions the obvious: that Browder and McFaul are private citizens, so there is no legal principle under which the U.S. executive branch could compel them to show up for the questioning anyway.

Do you see what’s happening here? Trump talks about this swap as though it’s a thing he could do. He knows it’ll never happen. But as people talk about what a terrible idea the swap is, they unwittingly accepting the premise that citizens are property for all-powerful rulers to use as pawns in the first place! They push back on Trump’s specific proposal, but they first grant his assumptions & worldview in order to do it.

The report offers a high-level typology of open source projects, enumerating the various kinds of projects and what situations each kind is suited for. We’re planning to do a version 2.0 with Mozilla, after feedback rolls in, so any thoughts folks have about v1.0 will be used to improve v2.0.

Many thanks to Mozilla, and in particular to Patrick Finch, for commissioning the report and arranging many informative staff interviews, and then for excellent editing and feedback on the early drafts.

I’m mystified by some Firefox browser privacy policies, and I wonder if anyone can help me understand them better.

I hadn’t been following browser HTTP referrer policy closely. I knew that referrals were sent, and that had always vaguely puzzled me from a privacy perspective, but I assumed that Smart People Were Working On It, and that there were probably reasons why things are the way they are. After reading this post on the Mozilla Security Blog yesterday, I suddenly wished I’d been following things more closely. The post is meant to tell us about how Firefox is getting better about privacy. But after reading it, I feel worse about privacy than I did before reading it. Here’s a summary of what the post says:

When you follow a link on web page X to go to web page Y, your browser sends Y’s server an indication that you were referred to Y by X. (This information is sent in the “HTTP Referer” [sic] header, for those keeping score at home; yes, it is probably the most famous misspelling in all of Web standards.) The referral information typically includes the entire URL of the page you’re coming from, that is, the site address and path of X. For example, for this post the site address is “www.rants.org” and the path is “/2018/02/a-mystery-firefox-and-user-privacy/“.

Okay, pausing for a moment to ask the obvious first question:

Can I turn this off in my browser settings? Because maybe I consider that information private and don’t want to tell one web site what other web site I’m coming from.

Answer: not unless you have a Ph.D. in Firefox Studies. At least, in the “Preferences → Privacy Settings” menu of Firefox 52.5, there is no identifiable option for controlling this. You can do it via about:config, by setting Network.http.sendRefererHeader to 0 instead of the default 2, but that way of setting preferences won’t fly for the majority of users. There really should be a way to do it from Firefox’s normal preferences dashboard.

Continuing with the post:

As of Firefox 59, when you’re browsing in Private Mode, Firefox will not send the path portion of the referrer information.

Well, uh, okay, that’s an improvement, I guess. But then why even send the origin site at all, even without the path? Shouldn’t “Private” mean private? In Private Browsing Mode, I would expect no referral information to be sent at all. Then, to make matters worse, a bit later the post says:

In Firefox Regular and Private Browsing Mode, if a site specifically sets a more restrictive or more liberal Referrer Policy than the browser default, the browser will honor the websites [sic] request since the site author is intentionally changing the value.

Now I’m even more confused. Why would the site author get to decide what the value should be? At all, I mean, but especially in Private Browsing Mode! I thought the whole point of Private Browsing Mode was that the browser user would decide that. Browser users are often in an adversarial relationship with site authors. The browser should take the user’s side in that relationship, every time.

I must be missing something here. Education welcome. (The answer might be somewhere under this post, but I haven’t found it yet.)

A few years ago at ORD Camp I participated in one of my favorite conference sessions ever. I don’t remember exactly what we called it, but something like “I Was Wrong: Share One Big Thing You’ve Changed Your Mind About”. There were about fifteen to twenty people in the room. I asked everyone who felt comfortable doing so to speak for just a couple of minutes about some important matter on which they had changed their mind.

I took notes during the session, and said I would blog about it. Then I got really busy with my company, and the next thing you know, the Earth had travelled another 2.9 billion miles or so.

Now it’s almost time for ORD Camp 2018, and I’m finally getting around to writing that blog post. Sorry for the delay, everyone!

Although my notes record who said what, I’m not sure everyone agreed to have their name associated with what they spoke about, so this is anonymous (except for what I said). Also, most of the items below are not literal quotes: the session was spoken, and I mostly wasn’t transcribing verbatim. When I put something below in double quotes, that means it was in double quotes in my notes, so it probably represents an actual quote or something close.

I started off the session with this:

Religion is a rational response a widespread human need that I myself feel. Being religious does not mean someone is un-rigorous or un-intellectual; it is, quite often, a sign of being well-adjusted. Although not religious myself (and unsure whether that’s due to preference or to inability), my reaction to religiosity now is something like jealousy, whereas when I was younger it was some combination of incomprehension and unarticulated contempt.

(I’m okay admitting that now. However far away that younger self was at the time of the session, he’s several years even farther away now that I’m finally getting around to writing this post!)

After that, other people spoke about things they had changed their minds about. Each individual item below is a summary of one person’s contribution.

Humans are not infinitely malleable with respect to ability; practice is not all.

Absolute, black-and-white answers are not all.

(Did that last one sound obvious? Maybe it is, to you. Remember, this was a session about things that individual people had changed their minds about. For this person, black-and-white answers had been important for many years… until they were not.)

Engineers find real-world thinking repugnant but rigorous.

“I no longer believe that activity in a project leads to good software.” Great software development does not necessarily lead to a great product; instead, inactivity leads to stable, good software.

The free market is not the only tool in the social toolbox. It is just one of many! (E.g., emergency services.)

I used to believe in God; now I am an atheist, except when doing art.

The U.S. Constitution is rally horribly broken. It needs to be flushed down the toilet. No other countries use it as prior art!

Mythology is not boring — it’s not! You have to have the backstory; don’t just get it from TV.

His poor memory about childhood didn’t bother him — until waking up after a 10-hour post-party blackout. Eventually he realized it’s not important to know every moment in your life, except for effects on yourself or others.

The shift from believing to not believing — does it result in hope? Innocence? Cynicism?

Social isolation led me to libertarian politics when I was young. Then I went to Japan — it was mind-blowing. Public interactions worked: society was not off-putting, people were trustworthy. Traits that I had thought were human were cultural!

Gun control — not such a good idea after all.

Fate — it’s not a thing. What I had thought was fate was a long run of good luck…

Had to change almost everything she believed growing up. Change of beliefs is good — it creates depth of personality and better sympathy.

Reading over these notes, fragmentary as they are, reminds of how interesting that session was. Thanks to everyone who came. I hope to see you again soon!

The Software Freedom Conservancy is responding appropriately to a surprising and unwarranted trademark action from SFLC (the Software Freedom Law Center).

SFLC’s action is especially indefensible given their role in helping set up the Conservancy in the first place. SFLC’s own public statement on the matter does not stand up to scrutiny. If you’re just following this from the bleachers and aren’t sure which side you’re on, then support Conservancy. They’re behaving responsibly in this unexpected situation. For more details, read on.

The Full Story:

If you’re still reading, then you’d like to know more about what happened. I can offer some information and context that may be helpful to you. But first, you should read Conservancy’s short post of Nov. 3, which explains the bare facts of what happened.

The rest of my post is an analysis of SFLC’s public followup of Nov. 6, which I reproduce in full below in order to comment on it. Please take the time to read all of what they wrote, even if you don’t read all of my analysis. I’ve highlighted some particularly egregious passages, but my comments are not exclusively about the highlighted parts — SFLC’s post is, as the saying goes, a “target-rich environment”, unfortunately. Even so, I must leave many things unresponded to, because there’s just too much there.

Concerning a Statement by the Conservancy

By Eben Moglen & Mishi Choudhary | November 6, 2017

On Friday, while we were putting on our annual conference at Columbia Law School, a puff of near-apocalyptic rhetoric about us was published by SFLC’s former employees, Karen Sandler and Bradley Kuhn, who now manage the Conservancy, which was originally established and wholly funded by SFLC, and still bears our name. We were busy with our conference when this happened, which seems to have been the point. We are glad to have the chance now, after a little much-needed rest, to help everyone avoid unnecessary hyperventilation.

A couple of points:

First, the line “and still bears our name” is a lovely example of what in classical rhetoric is called petitio principii and in English we call “begging the question”. The whole dispute here is about whether SFLC should get an exclusive trademark on the phrase “software freedom” in this domain. How convenient for the USPTO that the SFLC can already state as fact that the phrase belongs to SFLC — I guess we can all go home now.

Second, SFLC had a choice about the timing here. If SFLC didn’t want to deal with this until after their conference, then they could easily have delayed their USPTO filing until after the conference. It’s true that Conservancy didn’t respond to the filing immediately, but that’s understandable: it takes time to prepare a formal response at the USPTO and an appropriate public statement. No organization turns that kind of stuff around on a dime. I don’t know whether Conservancy intentionally timed their statement to go up during SFLC’s conference — I haven’t asked them — but even if they had, who could blame them? I would certainly have done so in their shoes: that’s when the statement would be most effective, after all. It’s a little hard for me to work up sympathy for SFLC on this one (and it’s not as if SFLC gave Conservancy any warning about the original action in the first place — more on that below). It seems kind of nervy for SFLC to blame Conservancy for a timing opportunity that was basically SFLC’s choice.

In general I won’t comment on matters of tone, except to say once here at the start that SFLC’s tone is arrogant and condescending: “…a puff of near-apocalyptic rhetoric…”, “We are glad to … help everyone avoid unnecessary hyperventilation”, and so on.

Wait a moment: SFLC just asked the U.S. government to essentially force Conservancy to change the name it has been using publicly for over a decade. I do not think that Conservancy’s well-reasoned and basically calm opposition to this bizarre proposal counts as “hyperventilation”.

What Has Happened?

At the end of September, SFLC notified the US Patent and Trademark Office that we have an actual confusion problem caused by the trademark “Software Freedom Conservancy,” which is confusingly similar to our own pre-existing trademark. US trademark law is all about preventing confusion among sources and suppliers of goods and services in the market. Trademark law acts to provide remedies against situations that create likelihood of, as well as actual, confusion. When you are a trademark holder, if a recent mark junior to yours causes likelihood of or actual confusion, you have a right to inform the PTO that the mark has issued in error, because that’s not supposed to happen. This act of notifying the PTO of a subsequently-issued mark that is causing actual confusion is called a petition to cancel the trademark. That’s not some more aggressive choice that the holder has made; it is not an attack, let alone a “bizarre” attack, on anybody. That’s the name of the process by which the trademark holder gets the most basic value of the trademark, which is the right to abate confusion caused by the PTO itself.

The holder of the junior mark causing the confusion has of course a full range of due process rights to defend the mark that it has registered, as it should have. So the result is very like a trial, and is conducted before an administrative tribunal called the Trademark Trial and Appeals Board. Its job is to decide whether the PTO wrongly registered a mark likely to cause confusion, which the PTO isn’t statutorily authorized to do. The process is formal, conducted under rules like the Federal Rules of Civil Procedure, and its records are publicly accessible. This is not a proceeding in which anyone is seeking an injunction or claiming damages. The only question being asked is whether the PTO should have issued the trademark.

The junior mark causing the confusion was applied for in November 2011, almost a year after SFLC ceased representing the Conservancy; the Conservancy had its own lawyer, who signed the trademark application.

From reading this, you’d never guess that SFLC was fine with the name from 2006 until recently, and had even served as Conservancy’s counsel until 2011, with the name “Software Freedom Conservancy” in active use the entire time, would you?

By no means does this situation justify the tone of defensive overreaction we heard from the Conservancy management on Friday, which was like reading a declaration of war issued in response to a parking ticket.

Two points:

One, there was nothing resembling a declaration of war, at least not by Conservancy (re-read their post and see for yourself). Conservancy is understandably opposed to a trademark action filed against them, and they rightly question the wisdom of a supposed ally in taking that action. If their response is a “declaration of war”, then I’m Marie of Roumania.

Two, this is much more serious than a “parking ticket”. It is not an overreaction to be very irked when an ally — an ally that had never expressed a problem with the organization’s name in all the years before — suddenly goes straight to the top and asks the USPTO to cancel the trademark. SFLC’s simile does not convince.

Why Didn’t You Settle This Between the Organizations?

We too think this is a very good question. We have tried repeatedly for almost three years to get a meeting with Karen and Bradley in order to discuss this and other claims we have concerning their and the Conservancy’s activities. In all that time, they have never once agreed to meet with us to hear and discuss our concerns. They have presented transparently dilatory responses, such as being “too busy,” or even “always too busy” when we asked them to set their own time. Sometimes we have not been offered so much as the courtesy of a refusal.

We have asked intermediaries—friends, business associates, comrades in the free software movement, other alumni of SFLC—to stress to Bradley and Karen the importance of opening negotiations. One would think this unnecessary with people who talk so frequently about the importance of communication and opening connections with respect to “compliance enforcement.” But here, when the shoe is on the other foot, no efforts on our part have gotten us the slightest progress in bringing about discussions to resolve differences.

We think that waiting more than thirty months after initial contact—and after repeated efforts at both direct and mediated communication seeking to open negotiations—is not too little time to allow before beginning to bring our claims.

These paragraphs are disingenuous in several ways.

First, Conservancy has consistently been willing to meet, but merely insisted as a ground rule that the conduct of the meeting must be professional and civil. This was both responsible and a smart move on their part. The meeting isn’t going to be productive if it involves shouting and insults, and they had reason to believe that was a real possibility.

If you don’t know the personalities involved here, you might not understand why such a ground rule would be necessary. Let me simply say this: I have known Conservancy’s Executive Director, Karen Sandler, for a decade now, and worked very closely with her on a number of efforts, some of which involved contentious counterparties. I have never seen Karen lose her temper nor engage in personal insults or ad hominem arguments, not even with parties who frankly deserved it. She has consistently gone out of her way to keep dialogue constructive, to treat people with respect, and wherever possible to find solutions that work for everyone, even in very difficult conversations. If Karen is unwilling to meet with someone without getting agreement on ground rules, there must be a very serious reason for that.

So when SFLC says “they have never once agreed to meet with us”, I read that as “Conservancy wasn’t willing to waste time on a pointless face-to-face meeting on SFLC’s home turf with no written agenda and with SFLC refusing to explicitly commit to basic ground rules of civil discourse”. If I were running Conservancy, I would have made exactly the same decision.

Second, regarding SFLC’s claim that they tried to communicate about this specific trademark complaint:

I think I am probably one of the intermediaries referred to in SFLC’s post, and as I don’t wish to violate any confidences, I cannot go into detail about the conversation in which I was asked to be a go-between. But I can state the conclusion that I immediately drew from that conversation, which was that there was no point trying to be an intermediary. SFLC’s view of things was so different from Conservancy’s, and so far removed from anything I could recognize as reality, that I could not carry any useful message to Conservancy other than “I don’t understand what you should have done differently”. I can also state that this trademark issue was not raised then. The dispute at that time was about something else entirely (and, for the record, that other matter was also an instance where I felt that SFLC had acted poorly toward Conservancy, though it was not nearly as serious as this trademark claim).

I never heard a word about this supposed trademark problem from either party before SFLC filed their public protest at USPTO. Now, I talk to people at Conservancy all the time, sometimes multiple times a week. We discuss all sorts of things, including occasionally matters that they have asked me to keep in confidence. If SFLC had sent Conservancy some kind of notice, written or verbal, that they had a trademark issue with Conservancy and would like to discuss it, I am pretty sure I would have heard about that. Actually, let me state that more strongly: I am positive I would have heard about that. There is just no way something so important wouldn’t have come up in our conversations. It’s too big. If I didn’t hear about it, the obvious conclusion for me to come to is that Conservancy hadn’t heard about it either.

So SFLC’s claim that they have been trying to get in touch with Conservancy “in order to discuss this and other claims we have concerning [their] activities” is misleading. Notice how carefully SFLC worded it. They do not quite say that SFLC did something to make Conservancy aware of this specific trademark claim before filing a protest at the USPTO. If you read the post quickly, of course, you might get that impression, but if you read it carefully, like a lawyer, you realize SFLC hasn’t actually said that at all. What they’ve said is that they tried to get a meeting, and that they (SFLC) knew what they wanted that meeting to be about. But they don’t actually say that they informed Conservancy of the agenda, and my belief is that they did not — because if they had, their post would surely quote the email or document they had sent. SFLC shows us no such quote, and they don’t show it because it doesn’t exist.

From the evidence I’m aware of, and based on SFLC’s own post, I don’t believe the SFLC gave Conservancy any warning about their trademark complaint, let alone tried to raise the issue in a good-faith way before resorting to a USPTO filing. I would be happy to be corrected by SFLC or by anyone else possessing the requisite information on this point.

In any case… come on, it’s 2017: if you need to communicate something to someone, there are lots of ways to do it that don’t involve an in-person meeting. Send an email — then you get a date-stamped digital record, as a bonus. Send old-fashioned registered mail through the U.S. Postal Service. Send a courier; the two organizations are both in New York City, so it won’t be expensive. Or, if it’s so important that it be in person, ask to meet on neutral ground with some trusted third party present. To the best of my knowledge, SFLC did none of these things. Again, corrections welcome.

When Conservancy says they were surprised by the USPTO filing, they mean it — for them, it came out of the blue. Conservancy’s exact words on this: “… SFLC made no efforts — over the last eleven years since Conservancy was formed, nor in the last five years since we registered our name as a trademark — to express any concerns about our name, or a desire for us to change our name. We first learned of SFLC’s complaints from this surprise attack of legal action.”

I have never known anyone at Conservancy to lie.

Safety For Others

Friday’s response from the Conservancy’s management is grossly disproportionate, and—in view of their long-maintained refusal to communicate with us—irresponsible. The first responsibility of asset managers, who have others’ rights and valuables in their keeping, is prudence. One would hardly associate the word “prudent” with either their statement on Friday or the course of conduct over the last three years that it culminates.

Special concern should be expressed about the aspect of their statement darkly suggesting that we are creating risks for projects associated with the Conservancy. The driver of any risk, it seems to us, is the reckless refusal of the Conservancy’s management to negotiate with us for settlement of our claims, which has left us to pursue last-resort approaches we have done everything we could to avoid.

But we absolutely agree that within the free software community we must protect projects producing software from any avoidable risks in the organizational or legal situation around them. That’s what our law practice at SFLC is always about. Any project working with the Conservancy that feels in any way at risk should contact us. We will immediately work with them to put in place measures fully ensuring that they face no costs and no risks in this situation.

I was shocked when I read that. I mean, is this a trademark dispute or a 1930’s-style Stalinist whispering campaign?

This is a transparent attempt to undermine Conservancy’s mission by sowing fear, uncertainty, and doubt among its members and supporters. It is unlikely to have any harmful effect on Conservancy, fortunately. My prediction instead is that SFLC will one day come to understand that including that not-particularly-subtle attack was an unwise and deeply unprofessional non sequitur.

For what it’s worth: I’m pretty familiar with Conservancy’s operations, and have sat on their Evaluation Committee for several years (the Evaluation Committee assists Conservancy by providing third-party evaluation of applications by free software projects to become members; the position is unpaid). I cannot imagine an organization having higher ethical standards and levels of care regarding the management of member projects’ assets. Anyone who knows Conservancy staff personally knows how seriously they take their work, and how they bend over backwards to make sure they always behave with utmost responsibility. If the Software Freedom Conservancy were a bank, I would sleep soundly at night knowing my accounts were there. The idea that software projects should suddenly worry about Conservancy, and should contact SFLC of all places to assuage that worry, is risible.

What Should Happen Next?

Everyone observing this situation, we suspect, knows the answer to this question. But we cannot bring to the table counterparties who have so far refused to meet us, and who on Friday used their communications energies greatly and unnecessarily to increase polarization, thus making diplomacy harder. We recognize this pattern in their conduct from other situations. We have spent the last eighteen months preparing to bring our claims in the various relevant fora. We are now, as we have been throughout, fully prepared to meet immediately for a discussion of all outstanding issues without preconditions. Otherwise, it seems evident that more shoes will drop.

It wouldn’t be a Stalinist whispering campaign without the thinly veiled threat at the end, would it?

I am very familiar with both organizations. Though I’m somewhat more familiar with Conservancy these days, as I’ve worked more closely with them in recent years, I have watched (and learned from) SFLC for a long time as well, and have even been represented by them. I have utmost confidence in Conservancy’s ethics and sense of responsibility regarding both their mission and their members. If a defense fund becomes necessary as a result of this action, I will contribute to it and will urge others to do the same.

Now comes the sad part of this post.

When I moved to New York City in 2008 (I stayed there until 2012), I was both professionally and financially at a low point. I knew I cared deeply about free software, but I didn’t really have a game plan or much in the way of resources. New York is a tough place to land in that condition.

SFLC’s founder and Executive Director, Eben Moglen, was extraordinarily supportive. He let me use some space — private space, with a door! — at SFLC’s offices in Manhattan. This was much more than just a desk and somewhere to go in the morning: it was a community of like-minded people, many of whom remain friends and colleagues of mine to this day. My (now) business partner James Vasile was one of them; so was Karen Sandler and so was Bradley Kuhn, now both at the Software Freedom Conservancy.

Eben didn’t just give me a space and a community. He gave generously of his time and attention, even when he had plenty else on his own plate. He has a fine strategic mind, and knows how to combine that with his broad knowledge of history to see whole that which others — myself included — see only in parts. He would ask questions and share his thoughts; I benefited from his advice and perspective many times, and have continued to do so, albeit less often, even after leaving New York.

It pains me to pay back his help and friendship with this post. I have written in an angry tone because I am angry; SFLC’s treatment of Conservancy has been unacceptable for a while now, and this trademark action was the last straw for me. These two organizations should be allies, working together where they agree on tactics and respectfully parting ways where they do not. Conservancy has consistently demonstrated a willingness to do that; SFLC should too.

Update 2017-11-11: Eben Moglen and I have now talked about this post. We discussed many things, and he made two points that I felt were undeniable. One was that in my original version I mentioned a previous matter in which SFLC had “acted in bad faith” toward Conservancy. This was both too strong and simply inaccurate, as it was not bad faith. I have reworded that passage to say instead “acted poorly toward Conservancy” — and apologized to Eben: acting in bad faith is a serious accusation, and I should have not have used those words. He also pointed out that it would have been both proper diligence and proper friendship to call him and ask about the trademark matter (and anything else) before posting. I agree, and he has my apology for not having done so.

Unrelated to the above, I made a minor change after initial publication, to clarify one point. I don’t think the change is very important, but for the sake of transparency, here’s the diff.